Don Christensen on the Military Justice Improvement Act

Col. Don Christensen,
USAF (Ret)

Former Air Force chief prosecutor Col. Don Christensen, USAF (Ret) has written a powerful rejoinder to the Heritage Foundation's Cully Stimson on Sen. Kirsten Gillibrand's Military Justice Improvement Act. According to Col. Christensen, who is now president of Protect Our Defenders:

Military justice must hold criminals accountable

Stimson claims that military justice is different in that is not solely based on holding criminals accountable; rather, quoting a Heritage report written by himself, he argues that “our military justice system exists in order to help the military to succeed in its mission: to defend the nation. … Ultimately, it is structured to fight and win wars.” 

This red herring argument fails on this fundamental level because the Uniform Code of Military Justice is a criminal justice process containing a code of criminal procedure on specified offenses such as rape, murder and theft. These are crimes that transcend good order and discipline issues to crimes that affect society at large. There is no legitimate argument that the military must be able to treat rapists and murders as a discipline issue rather than a criminal issue. To argue so is to diminish the seriousness of the crime. It is time to stop sacrificing justice for survivors at the altar of good order and discipline. The reality is that good order and discipline is undermined when criminals are allowed to act with impunity and not held accountable for their crimes.

Commanders are not tougher on crime

Stimson also trots out the tired old myth that commanders are routinely sending cases to court against military prosecutors’ advice. The genesis of the myth appears to be a letter the DoD provided to the Senate Armed Services Committee in 2013. The letter claimed that in the past two years there were 93 instances that a convening authority referred a case to court-martial after a civilian prosecutor refused to prosecute the case. This assertion was conflated by senators aligned with the Pentagon who claim that convening authorities are tougher than military prosecutors. The narrative has thus been pushed that fewer cases will go to trial under Gillibrand’s proposed act because commanders will send weak cases to trial that risk-averse prosecutors would decline. Stimson conflates this false narrative with his argument that convening authorities are unencumbered by pesky ethics rules that keep prosecutors from taking cases to trial.

Despite repeated requests from Protect Our Defenders, the DoD has failed to prove there were in fact 93 cases that a local prosecutor refused to pursue that convening authorities sent to trial. For example, the Navy responded to our request on Oct. 8, 2013, saying they “do not maintain a system of records including 120 cases charged by civilians, reasons for civilian law enforcement’s declination, or the military’s request for civilians to [withdraw] charges.” In other words, the numbers appear to be little more than guesswork passed off as fact. 

Further, there is no evidence that these were cases that a local district attorney “refused” to pursue. Based on my 23 years of experience in military justice, there are many instances when a district attorney will agree to cede jurisdiction to the military purely because the military asked for the case. Many district attorneys want to cooperate with the military and foster good relations with the local base. That does not mean the district attorney would not have pursued the case if the military had not asked for jurisdiction. 

While it is a common refrain that commanders are tougher than judge advocates, there appears to be no evidence of convening authorities sending cases to trial contrary to their legal advice. This is understandable for a number of reasons. In order for a convening authority to send a case to a general court-martial, he must first receive advice pursuant to Article 34(b)(2) of the Uniform Code of Military Justice (UCMJ) that the charges are warranted by the evidence. Without such advice, the case cannot proceed to trial. 

Moreover, a trial counsel must ethically recommend to a convening authority to withdraw any charge not supported by the evidence. Under the UCMJ, the staff judge advocate and trial counsel have a duty to protect an accused from being tried on charges not supported by the evidence. While a judge advocate has no ability to require a case go to trial, the staff judge advocate has a duty and authority to prohibit a case unsupported by evidence from going to trial. Thus, a judge advocate has a shield to protect the accused, but no sword to prosecute him. 

Stimson makes a few other false claims concerning military prosecutors. To start with, the convening authority receives his legal advice from his staff judge advocate who works directly for the convening authority and is not independent. Moreover, the staff judge advocate by law is not a prosecutor and acts in a quasi-judicial role of neutrality. 

Additionally, most staff judge advocates have limited practical litigation experience and for a general court-martial convening authority, that experience will be decades in the past. 

Each service has its own way of setting up “prosecutor” offices. However, prosecutors have almost no authority and all meaningful decisions are made by the convening authority or his staff judge advocate. In the Air Force, for example, at least one prosecutor works directly for the special court-martial convening authority and is in the chain of command of the general court-martial convening authority. Prosecutors are in no way “independent” of the chain of command. Make no mistake. The prosecutor is operating in a court “owned” by the convening authority. The prosecutor must get the permission of the convening authority or his staff judge advocate to travel witnesses, employ experts, drop or add charges, appeal decisions of the court, enter into pretrial agreements and a litany of other traditional prosecutor authorities. Most convening authorities or his staff judge advocate will direct the trial counsel on what motions they should raise or what sentence to argue for. 

Finally, Stimson makes the bizarre argument that justice is better served because lawyers are guided by a canon of ethics while commanders are not. In fact, he argues cases are now going to trial where “there is not evidence of a crime.” If true, this should be a horrifying thought and not be considered a strength of the convening authority system. To the extent that anyone would think this is good, it needs to be soundly rejected. If convening authorities are indeed sending cases unsupported by the evidence and contrary to their legal advice to trial, that fact alone should result in immediate reform. 

As to his correct assertion that convening authorities are not bound by ethical standards, this is just another reason why it is better to have an independent and professional prosecutor making these weighty decisions. One huge concern should be the very fact that convening authorities are not bound by ethics rules. I do not see that in any way as a positive. Military prosecutors have a code of ethics to ensure justice is administered fairly and impartially. For example, a military judge could be forced to recuse himself from a case due to his relationship with a witness, accused or victim. The same is true for a prosecutor, but there is no similar requirement for convening authorities.